Ruby v Kings Lynn & Wisbech Hospitals NHS Trust

Permission to appeal out of time depends principally on whether the proposed appeal has a real prospect of success and whether there is any compelling reason for it to proceed. Delay may be excused where those thresholds are met, but unexplained delay remains significant in employment proceedings. An Employment Tribunal has a broad case-management discretion when deciding whether to issue witness summonses. Its findings of fact will not be disturbed merely because evidence conflicts or further expert evidence might have assisted. Appellate intervention requires a finding that no reasonable tribunal could have reached the conclusion.

Dr Ruby brought claims of unfair dismissal and breach of contract against the Trust following the expiry of his fixed-term employment contract. The Employment Tribunal dismissed those claims and had earlier refused, as out of time, an amendment alleging racial discrimination. The Employment Appeal Tribunal, presided over by Charles J, dismissed Dr Ruby’s appeal on 6 June 2001.

Dr Ruby sought permission to appeal to the Court of Appeal out of time, together with permission concerning the refused racial-discrimination amendment. The central questions were whether the delay should be excused and whether any proposed ground had a real prospect of success or raised another compelling reason for an appeal.

1. Application dismissed. Lord Justice Peter Gibson declined to hold the delay against Dr Ruby only on the assumption that the proposed appeal had a real prospect of success. Having examined the grounds, he found no such prospect and no other compelling reason for the appeal to proceed.
2. The racial-discrimination point was raised far too late. It had not been advanced before the Employment Tribunal, the amendment had been refused as manifestly out of time, and the subsequent delay in raising the issue was effectively unexplained. The suggestion that the continuing effect of the grey letter justified an indefinite extension under section 68 of the Race Discrimination Act 1976 was, in any event, of very dubious merit. Delay is significant in employment cases and time limits are approached strictly.
3. The refusal to issue witness summonses was a proper exercise of the Tribunal Chairman’s case-management discretion. Witness orders should not be made unless the proposed evidence is shown to be relevant to the hearing. The Tribunal was entitled to reach the conclusion it did on the material before it.
4. The Tribunal had properly considered the alleged breach of the implied term of trust and confidence, including the allegation concerning clinical conduct. It was entitled to accept the evidence of the Trust’s witnesses and to conclude that the trainers were entitled, using their professional expertise, to find that Dr Ruby was not fit for the job.
5. The Tribunal was the arbiter of fact. It had sufficient evidence to determine the clinical and medical issues, including evidence from medically qualified witnesses. The complaints of inadequate expert evidence and perversity therefore disclosed no arguable ground. The finding that the unfair-dismissal claim had been withdrawn was also plainly supported by the procedural history.

1. Court of Appeal (Civil Division): Application for permission to appeal out of time dismissed.
2. Employment Appeal Tribunal: Appeal dismissed by Charles J on 6 June 2001.
3. Employment Tribunal, Norwich: Claims of unfair dismissal and breach of contract dismissed. An application to amend to allege racial discrimination had previously been refused as out of time.